When I read about Marina Abramović’s volunteer advertisement on the New York Foundation for the Arts (NYFA) website last week, it got me thinking about how many arts nonprofits employ the law to their benefit, and many times against an ethical grain.
According to the New York State Department of Labor fact sheet on wage requirements for interns in not-for-profit businesses, “There is no section of the Labor Law that exempts ‘interns’ at not-for-profit organizations from the minimum wage requirements.” Although there is no “interns” category per se, Labor Law does carve out three categories of workers that may be excepted from minimum wage requirements. The three categories are volunteers, students, and trainees/learners, and apply only to not-for-profit organizations or institutions set up and operated exclusively for charitable, educational or religious purposes.
Presumably the Marina Abramovic Institute (MAI) was established for an educational purpose. Assuming that, it seems that the main question would be whether these “volunteers” sought by MAI are replacing or augmenting paid staff and whether they are being required to work certain hours, among other factors. These same “volunteers” could be classified as trainees/learners, but given that the NYFA job ads detail a need for applicants who come to the MAI with a certain set of skills, there doesn’t seem to be any indication that these “volunteers” would be given supervised formal instruction or on-the-job training. And unless they’re students — or recent students — enrolled in a degree, diploma, or certificate granting institution, the above would still apply.
One other related thought is why NYFA publishes such job advertisements. Even if there are no legal repercussions, one would hope NYFA’s internal policies would be a bit more stringent so as to not perpetuate and condone any exploitative labor practices.
Although it may seem that MAI (and many other arts nonprofits) may be legally within their bounds, the question is whether the current legal framework should be exploited by those who purport to represent and support artists and other cultural producers. I recall back in 2005, as a fellow for the Center for Constitutional Rights, hearing from a colleague how then-Judge (now U.S. Supreme Court Justice) Sotomayor, during oral arguments that summer, once asked one of the attorneys: “Just because you can, does that mean you should?”
The author is an artist and arts lawyer in New York.